Transcribed ABA Podcast Interview with Jan Mills Spaeth, Ph.D. Regarding The 2 DVDs, First Released July 17, 2008.

Why did you become interested in the subject of witness preparation?

In conducting post-trial juror interviews over the years, I became very aware of the impact witnesses had on the case outcome.   Cases were won or lost based on whether jurors liked the client, or expert witnesses, or even lay witnesses.   I saw jury nullification occur time and time again based on attitudes toward witnesses, regardless of case facts.   This pattern was also very apparent with focus groups and mock trials.   In addition, I have worked with hundreds of scared, anxious and inexperienced witnesses. As a result, witness prep has become a primary interest for me.

You have 2 DVDs on witness preparation. How are they different?

One DVD focuses on preparation for deposition testimony, while the second DVD focuses on preparation for trial testimony. While both DVDs cover much of the basic information on testifying, the settings, witnesses and examples are different. For instance, the setting for the Deposition DVD was a conference room in a law office. We had 4 attorneys conducting the deposition segments, and 10 different witnesses answering these questions.

The Trial DVD was filmed in an actual courtroom. We populated the courtroom like it would be at trial, with a 14 panel jury, 4 attorneys, a judge, clients, observers and a dozen witnesses who testified on the witness stand.

In addition to the different locations, witnesses and examples, does the material in each of these DVDs differ?

Yes, it does. For instance, the Deposition DVD discusses the purpose of a deposition, what a deposition entails, what to expect when being deposed, preparation for the deposition, dressing for a deposition, and specifics on how a deposition may be used at trial. The Trial DVD covers different information, such as what to expect at trial, being sworn in, answering questions on the witness stand, addressing the jury, dressing for the courtroom, appropriate behavior in the courtroom and the courthouse, etc.

Can you give us a brief description of the information in these DVDs?

Certainly. Basically, we cover the "do's and don'ts" for credible witness testimony. Each DVD is just over 40 minutes. In the beginning of each DVD, we focus on the 3 most important steps of testifying, which are listen, think, then answer. We give examples of problems that can occur in each step, such as interrupting the attorney and answering the wrong question, or answering impulsively. We emphasize the importance of understanding a question before answering it, and recognizing questions that are trick or "no win" questions. We show witnesses polite ways of asking for clarification when unsure of a question.

In addition to the 3 steps, what other information do these DVDs contain?

Following the 3 steps of listen, think, then answer, we focus on the 10 C's of credible testimony. These are Be Candid, Competent, Concise, Certain, Courteous, Confident, Consistent, Composed, Clear and Conservative. Under the "Be Candid" section for instance, we show witnesses what can occur if they get caught in a lie, including a typical jury reaction to this. Under "Be Concise," in one example we show a rambling witness in contrast to a direct, concise witness. Under "Be Courteous," we show numerous examples of a witnesses being unpleasant or sarcastic, and the repercussions of this. Under "Be Certain," we discuss ways for witnesses to realize and indicate whether they do or don't know an answer. These are just some examples of the material on the DVDs.

Why did you decide to do these DVDs on witness preparation?

I do a lot of witness prep in my cases, and over the years I kept adding more material as I learned more through research and experience. In recent years, I found myself spending a good hour or more just covering basic information with witnesses. It was a lot of repetition. Also, I thought witnesses would absorb more information watching examples of other witnesses and viewing visual aids. About 2 and a half years ago, I began looking for video tapes that would cover this information in detail, and still be interesting.

And what did you find?

I located quite a bit of information for expert witnesses, but little material for lay witnesses or clients who were new to the legal arena. I did find a few videos from the late 1970's or early 80's, but these were outdated and only 15 or 20 minutes long, so not as comprehensive as I envisioned. Also, there was little variety in terms of the attorneys, witnesses, and settings, and visual effects were largely lacking. In a nutshell, because I could not find what I was looking for, I decided to develop the DVDs myself.

Why would these DVDs be helpful to attorneys?

First, they are an economical way to prep witnesses and clients, lessening the time required by attorneys and consultants to go over the "do's and don'ts of testifying. In addition, the same DVDs can be used again and again, lessening the cost per witness with each viewing. Second, the DVDs cover a good deal of information, and attorneys can be assured that important topics are covered with their witnesses and clients, including honesty, being respectful, listening to the questions, handling objections, addressing juries, and so forth. Not much has really been left out in terms of the basics of testifying.

Third, these DVDs help calm and reassure witnesses, and make them more open to counsel's advice and instructions.

Fourth, the attorneys can provide the witnesses and clients with the Summary handouts to use as a refresher. Counsel can also use the handouts as a guide for their witness prep, adding their own material and comments to supplement the handouts. A number of my clients are using the DVDs already with witnesses, and the feedback has been very positive.

Although it is apparent that these DVDs could be helpful to witnesses, can you give us some specific reasons as to why?

Certainly. These DVDs, which we have now been using with witnesses, help them know what to expect in their testimony. They assist witnesses in answering tough questions correctly and accurately. They teach witnesses to listen, think then answer. They encourage witnesses to be courteous and respectful. The DVDs help witnesses identify and testify to what they do and don't know. They instruct witnesses when to ask questions, when not to do so, and how to politely do so. They cover appropriate dress and appearance for depositions or trials. They also reduce stress, making witnesses feel more prepared, comfortable and confident when testifying.

You mentioned that these DVDs are about 40 minutes each. Do you think the witnesses will really absorb or remember much of this information?

Absolutely. Typically, as I mentioned earlier, I spend an hour or more with witnesses on just the "do's and don'ts" for credible testimony, and I've been amazed at how much they do retain from these sessions. We've been able to actually shorten these DVDs to just over 40 minutes, and still include a good deal of information.

In addition, in the DVDs witnesses are informed both in the beginning and the end that they don't have to memorize all the information, and that it will come to them as they need it when testifying. This way, witnesses won't feel pressured to recall everything in the DVDs. People absorb more when relaxed and not stressed.

Also, we inform the witnesses that they can watch the DVDs again if they wish. Plus, we let them know that their attorney can give them a written handout summarizing this material, and they can read it as a refresher. Both DVDs do come with Summary handouts for the witnesses. We feel that if the witnesses remember any of this material, it will be extremely helpful to them.

I imagine that if an attorney disagrees with any of the advice or approaches in the DVD, he or she can instruct their witnesses to handle the situation differently?

Definitely. Not everyone takes the same approach to witness preparation. Attorneys find methods that work well for them, and if these are in contrast to what's on the DVDs, that's fine. The attorney can simply call this to the witnesses' attention and advise them differently. If an attorney disputes 5% of the information on the DVDs, for example, 95% of the material will still be useful and relevant.

Are you at all concerned about the DVDs in regard to discovery or disclosure? For example, what if witnesses are asked what they read, heard or viewed in preparation for their testimony?

Discovery is always a consideration when developing a product for witnesses or clients. There are two areas I want to mention regarding this issue. First, witness preparation is generally protected by the attorney-client or work-product privilege. In fact, in 2003, the U.S. Court of Appeals for the Third Circuit found that witness preparation by non-lawyers (including trial consultants) was protected under the work product privilege based on Rule 26(b)(3) of the Federal Rules of Civil Procedure. My understanding is that little has been decided to the contrary since that time, suggesting a majority agreement.

Second, in the event these DVDs are disclosed, they were designed to withstand scrutiny. I actually worked with attorneys to ensure that these DVDs were helpful if disclosed, rather than harmful. For example, at the beginning of each DVD there is a statement that says "Nothing in this material is meant to have you do anything but tell the truth, the whole truth, and nothing but the truth in your testimony". In addition, throughout each DVD are instructions to tell the truth, be candid, don't make up answers, don't be evasive, and so forth.

As a follow-up, how do juries react to witnesses who are prepped to testify?

Good question. Most jurors expect witnesses to be prepared before testifying. A research project by the American Society of Trial Consultants, to which I belong, involving over 500 jury-eligible subjects throughout the U.S. found that 73% believed witness preparation is a very good idea. Only 15% thought this might indicate witnesses have something to hide. In my experience, I have been told by jurors that attorneys who prepare their witnesses to testify take their cases seriously, and show consideration for their witnesses. These jurors said they couldn't imagine being put on the stand to testify without preparation. So again, preparation for witnesses is expected by jurors.

Is there a short video clip of each DVD that listeners can view if they want to see a preview?

Yes. There are short clips of each DVD in the product pages in the ABA web store. These clips are approximately 2 and a half minutes each. Each segment covers different material in the DVDs.

Will these DVDs be useful or even applicable in countries other than the U.S.?

We believe so. Although laws differ from one country to the next, there are universal similarities in communication and effective presentation. Basics such as the 10 C's, including be candid, be confident, be concise, be courteous and so forth would likely apply to most witnesses who testify, regardless of country. The same holds true for the 3 main steps, listen, think then answer. If there is a demand for the DVDs in other languages, such as Spanish or Chinese, we could certainly do a version with subtitles in the future.

Do you have plans for any additional DVDs on witness preparation or other topics?

I do. These 2 DVDs are designed for witnesses and clients. I'm now working on a third DVD on witness preparation for attorneys. We intend to offer it for continuing legal education within the year.